2020 P Cr (PLP)

SHAMSUDDIN ABBASI, J.

This common judgment will dispose of all above-captioned criminal appeals, arising out of common Judgment dated 28.12.2013, passed in one and same crime bearing No. 16/2013 registered at Police Station Mehran, Mirpurkhas for the offences punishable under sections 365-A, 215, 34, P.P.C. and sections 6/7, Anti-Terrorism Act, 1997, Special Case No. 03/2013 [The State v. Muhammad Tahir and others], whereby the appellants were convicted and sentenced to suffer Rigorous Imprisonment for life with the order for forfeiture of their properties. However, they were extended benefit of section 382-B, Cr.P.C. Through instant criminal appeals, the appellants have challenged the said common judgment.

2. Briefly facts of the case are that the complainant Muhammad Younis lodged FIR on 08.03.2013 at 1825 hours stating therein that he and his brother Haji Muhammad Rafique have a Crockery shop in New Town Mirpurkhas; his nephew Waqas Ahmed aged about 13/14 years is studying in a private School in 6th class and after study, used to bring lunch at their shop his brother Haji Muhammad Rafique had gone to Punjab for purchasing crockery articles. On 28.02.2013, complainant's nephew Waqas Ahmed since did not come at the shop upto 1500 hours, he inquired from his house, on which he came to know that he left the house at 1400 hours carrying lunch. Complainant narrated this fact to his servant Amjad and nephew Kashif, complainant along with his nephew came at home and informed his brother Haji Muhammad Rafique through phone as well as neighbours Abdul Qayoom and others. They tried to find his nephew Waqas Ahmed in the vicinity. His brother Muhammad Rafique also came. On 01.03.2013, his nephew Kashif received a phone call on his Cell No. 0308-3551583 from a Cell No. 0313-9171426 and he was told that his brother Waqas is with them, they demanded ransom amount of Rs. 5,00,000.00 for his release with direction not to inform the police otherwise they will received dead body of said Waqas. Again after half an hour, they received phone call directing to come at Station Chowk at 08.00 p.m. night, they rushed at the pointed place, then on direction at Post Office Chowk but nobody was there. Again they were directed from the same phone number to come at morning and on the following day they were directed to come at 20.00 hours with ransom amount at the Shakh of deh

110. Accordingly, the complainant and his nephew Kashif rushed there and identified on the light of their vehicle Imran alias Muno son of Abdul Aziz Rajput. Abdul Waheed Baig son of Jabbar alias Rasheed Baig having T.T. pistols, they were on motorcycle and in their center complainant's nephew Waqas was sitting duly tied by his hands and feet. On their demand of ransom amount, the complainant told that his brother Haji Muhammad Rafique is bringing such amount. Meanwhile at the bridge a white colour Car was came and on seeing its light, both the accused along with abductee Waqas towards Siyal Colony and thereafter, they did not contact. Hence, instant FIR was lodged.

3. On 21.05.2013 while Inspector Pir Allah Rakhio of SHO Police Station Mehran along with his subordinate staff was on patrolling duty and when reached at Malhi Colony Mirpurkhas where at 05.00 a.m., he saw at the road of the colony a boy who was blind folded was sitting. He unfolded his eyes and on inquiry found him abductee of instant case.

4. The accused were arrested in the instant case and tried before the learned trial Court. Charge against accused was framed [Exhbit-21]. The accused pleaded not guilty, their pleas were recorded [Exhibit-22 to 28].

5. In order to establish their case, the prosecution examined PW-01 complainant Muhammad Younis [Exhibit-30] who produced FIR and his further statement, PW-02 Muhammad Kashif [Exhibit-33], he also produced his further statement. PW-03 Muhammad Waqas, the alleged abductee [Exhibit-35] who produced identification parade of four accused persons, his statement under section 164, Cr.P.C. and other identification of three accused persons, PW-04 PC. Niaz Muhammad mashir was also examined [Exhibit-40] who produced mashirnama of recovery of abductee Waqas Ahmed PW-05 Nagaram Mahesani, Civil Judge and Judicial Magistrate-I, Mirpurkhas who recorded Confessional Statements of accused Muhammad Shoaib and Muhammad Tahir [Exhbit-42] and produced such Confessional Statements etc. PW-06 Abdul Qayoom [Exhibit-50] who produced memos of place of incident, arrest of accused and recovery etc. PW-07 Inspector Pir Allah Rakhio, Investigating Officer [Exhibit-56], PW-08 Inspector Ali Muhammad Investigating Officer [Exhibit-59], who produced entry report, letter, mobile phone data as well as entry report. Thereafter prosecution closed its side vide statement at Ex.65.

6. Statements of the appellant were recorded under section 342, Cr.P.C. In their statements, they denied all the allegations levelled against them by the prosecution and claimed their innocence, however, they did not examine themselves on oath nor led defence evidence except accused Wali Muhammad who examined defence witness namely Muhammad Usman [Exhibit-73]. The respondents Wali Muhammad, Hassan and Dodo also produced some documents in their statements.

7. After a full-fledged trial the trial Court finding the appellants guilty convicted and sentenced them through the impugned judgment.

8. The learned counsel for the appellants contended that the appellants have been implicated falsely otherwise they are innocent having no nexus with the commission of offence that the alleged abductee was not recovered from the possession of any of the appellants, that the complainant firstly in his FIR nominated two persons namely Imran alias Muno son of Abdul Aziz Rajput and Abdul Waheed Baig son of Abdul Jabbar alias Rasheed Baig that the complainant and his nephew Kashif identified them who came for receiving ransom amount for releasing the abductee Waqas and at that time they also saw abductee seated at their motorcycle in the center; that the said nominated persons were subsequently exonerated by the police after their arrest as well as complainant in his further statement recorded on 19.03.2013 that the complainant party as well as police did not show any source of such confirmation regarding exoneration of the said nominated persons; that in his further statement the complainant implicated appellant Touseef Ahmed, Wali Muhammad and Hassan but he has also failed to connect them in the commission of offence by showing any source of their involvement that PW Khasif in his further statement recorded on 21.03.2013 also failed to show tangible piece of evidence for involvement of the appellants Touseef Ahmed, Wali Muhammad and Hassan; that the police also failed to bring on record the connection of rest of the appellants in the commission of offence; that the identification parade of the appellants was not made properly by observing all prosecutionary manners as provided under the law; that the identification parade of appellants Muhammad Shoaib, Muhammad Tahir, Touseef Ahmed and Wali Muhammad was held after two months and five days of their arrest whereas, identification parade of appellants Hassan, Dodo and Imam Ali alias Imamuddin alias Ustad Lahooti was held after three weeks of their arrest; that the FIR is delayed by 08 days without plausible explanation, that the police has failed to involve the real culprits of the incident but in order to show efficiency and ulterior motives as well as anger of filing applications from the appellants' party against police, the appellants have been implicated in the instant falsely. She further contended that there is no independent and convincing evidence brought on record by the prosecution establishing the case beyond shadow of doubt against the appellants, therefore, in such contradictory evidence of the prosecution witnesses, the impugned judgment passed by learned trial Court is liable to be set aside and appellants may be acquitted of the charge.

9. On the other hand, learned counsel for the complainant controverted the submissions of learned counsel for the appellants and contended that the prosecution witnesses have fully supported the case against the appellants, that the star witness of the incident abductee Waqas has identified the appellants in the identification parade, that the confession statements of the appellants namely Muhammad Tahir and Muhammad Shoaib proves the involvement of the appellants in the commission of the offence. He further contended that there is no mala fide on the part of the complainant, if were any mala fide on the part of complainant party against the appellants for their false implication, the complainant must have nominated them but since the instant case is based on realism and corroboratory prosecution evidence, therefore, the conviction and sentence recorded by the learned trial Court against the appellants is just, proper, in accordance with law and does not require any interference by this Court. Hence, the learned counsel prayed for dismissal of the instant appeals.

10. Learned D.P.C. has adopted the arguments as advanced by the learned counsel for the complainant and supported the impugned judgment.

11. We have heard the arguments and have gone through the material available on record.

12. On scrutiny of the entire record as available in the case file, we have found that initially the complainant nominated two persons namely Imran alias Muno son of Abdul Aziz Rajput, Abdul Waheed Baig son of Jabbar alias Rasheed Baig when the complainant and his nephew Kashif rushed at the place where he was called on phone to come along with ransom amount for release of the abductee Waqas and they identified them and also saw them having T.T. pistols. The complainant also found his nephew abductee Waqas on motorcycle and in their center. Subsequently, the complainant in his further statement dated 19.03.2013 exonerated the said nominated persons stating that on inquiry he has confirmed for their no involvement in the instant crime, however, he implicated appellants namely Touseef Ahmed, Wali Muhammad and Hassan, PW Kashif also implicated these appellants in his further statement recorded on 21.02.2013. It further reflects that the complainant and PW Kashif both are not eye-witnesses of the incident. They have not furnished any source during recording of their further statement or evidence before the learned trial Court.

13. The star witness of the indicent is alleged abductee Waqas who was recovered by the police as stated PW Inspector Pir Allah Rakhio of SHO PS Mehran on 21.05.2013 while he was on patrolling duty. The abductee Muhammad Waqas in his evidence recorded by the learned trial Court stated the story of the incident that on 28.02.2013 at 02:00 p.m. he left his house to his brother towards his shop in New Town, Mirpurkhas and when he reached at Girls College, two motorcycles came there, he identified the persons as Muhammad Tahir, Shoaib, Tauseef Ahmed and Hassan Shoro, who boarded him on their motorcycle by saying that his brother Kashif called him. He further stated that on the way accused Shoaib folded his face with cloth and brought him in a jungle where accused Hassan Shoro pointed gain upon him and threatened not to raise cries, therefore accused Hassan Shoro handed over his custody to accused Wali Muhammad and Wali Muhammad had handed over his custody to two accused namely, Dodo and Imam Ali, they both took him on motorcycle to another jungle where Imam Ali Lahoti kept him in the said jungle for about 2-1/2 months; on the last day of his confinement, accused Imam Ali Lahoti disclosed him that he has received the ransom amount from his parents and he would be freed, later on he brought him at abandoned place where he left him and folded his eyes with, cloths and issued threats for dire consequences, if he unfolded his eyes. He further stated that after some time police came there and recovered him and brought at police station; the police informed his parents and handed over his custody to their parents. Police recorded the statement of abductee and also produced him before learned Magistrate for recording his statement under section 164, Cr.P.C. as well as put him in identification parade of accused Muhammad Tahir, Muhammad Shoaib, Tauseef Ahmed and Wali Muhammad, thereafter another identification parade was also held before the Magistrate in which abductee has identified accused Hassan, Dodo and Imam Ali. During cross-examination, the abductee admitted the fact that he has given the names of accused on the instance of his brother Muhammad Kashif. While replying the question the abductee stated that at the time of conducting the identification parade of accused Muhammad Tahir, Muhammad Shoaib, Tauseef Ahmed and Wali Muhammad, only these accused were present and no other person was with them. He has also admitted that in his statement under section 161, Cr.P.C. he has not given the names of accused Wali Muhammad as well as main accused Tauseef Ahmed in his statement under section 164, Cr.P.C. It has also come on the record that Muhammad Tauseef is also working as Scrapper [Kabaari] and PW Muhammad Kashif is also Scrappers [Kabaari].

14. In the further statement of complainant which was recorded on 19.03.2013 prior to 2-1/2 months of recovery of abductee from the captivity of accused persons cannot be taken into consideration when the complainant in his FIR has specifically nominated accused Imran and Abdul Waheed duly armed with T.T. pistol along with abductee whose hands and feet were tied. The confessional statements of the appellants Muhammad Tahir and Muhammad Shoaib from its contents are not considerable on the ground that they did not confess their guilt in the confessional statements recorded by learned Magistrate and only implicated accused Tauseef which is not admissible in law.

15. A very important fact of the case is that the alleged abductee in his evidence disclosed that he was informed by the accused persons that they have received the ransom amount from his parents but this piece of evidence is not supported by any of the PWs during their evidence as to whether they have paid ransom amount or not.

16. We have also perused the joint identification parades of the accused before the Magistrate and are of the opinion that the same have not been held after observing the measures to be taken. In this regard a case of "Mehmood Ahmad and 3 others v. The State and another" [1995 SCMR 127] can be relied, wherein the Hon'ble Supreme Court of Pakistan has held as under:- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah. 396 in following words:- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight." This view was followed in Ghulam Rasool and 3 others v. The State (1988 SCMR 557).

9. It is, therefore clear that the proceedings of the identification parade where the appellants were picked up without describing the roles played by them in the crime suffer from illegality and infirmity rendering it completely unreliable having no evidentiary value.

17. Admittedly, the incident is unseen. Complainant and PW Kashif are not eye-witnesses of the incident. There remains only the evidence of abductee Waqas but whose evidence is contradictory as pointed above, which is dubious. On the other hand, the document produced by the appellants in their statement under section 342, Cr.P.C. regarding their confinement prior to arrest falsify the version of prosecution. Evidence of Defence Witness Muhammad Usman was not shattered by the prosecution.

18. In our view, where a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a 'matter of right', hence, single doubt is sufficient to acquit the accused. In this regard, we are fortified with the cases of "Tariq Pervaiz v. The State" [1995 SCMR 1345], "Ayub Masih v. The State" [PLD 2002 SC 1048], "Muhammad Akram v. The State" [2009 SCMR 230] and "Murad Ali and another v. The State" [2011 PCr.LJ 1133]. In the case of "Tariq Perviaz" [Supra], the Honourable Supreme Court has held as under:- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." While in the case of "Ayub Masih" [Supra] the Honourable Supreme Court held as under:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstances which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while avaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."

18. In the case of "Murad Ali and another" [Supra], it has been observed as under:- "It would be clear that the prosecution has failed to prove its case against the accused beyond any reasonable doubt. It is a well settled proposition of law that when the prosecution fails to prove its case beyond reasonable doubt benefit of the same has to be given to the accused. Reference in this regard may be made to a latest judgment given by the Hon'ble Supreme Court of Pakistan in the case of Amin Ali v. The State 2011 SCMR 323, wherein the Hon'ble Court observed as under: "After considering the material available on record, we are of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt. Therefore, they are entitled for the benefit of doubt, which is accordingly given to them. The conviction and sentences awarded to them are set aside, therefore, they are acquitted of the charge. They should be released forthwith, if not required in any other custody case. Consequently, the appeal is allowed."

19. In view of the above, we are of the considered opinion that the prosecution has failed to establish its case beyond any shadow of doubt, hence, the findings recorded in impugned judgment require interference by the Court. Consequently, instant appeals are hereby allowed. The appellants are ordered to be released forthwith if not required in any custody case. JK/H-10/Sindh Appeals allowed.